TCS Daily


Fifth No More

By Douglas Kern - July 22, 2005 12:00 AM

"To you young whipper-snappers who have spent your entire lives without the right against self-incrimination, all the hullabaloo from the mid twenty-first century must seem incomprehensible," said the professor, as he scanned the crowd of first-year law students for any signs of weakness or under-preparation. "See it from the perspective of your forefathers. They grew up with a rule that absolutely forbade the prosecution from making any motion compelling the defendant in a criminal case to testify. Everyone had heard of 'pleading the fifth.' The popular entertainment programs on the old-style two-dimensional video networks always showed crime dramas with defendants piously invoking their right against self-incrimination. To our grandparents, the loss of the right not to testify was scandalous! A violation of the sacred protections that Anglo-Saxon jurisprudence guaranteed to citizens since the seventeenth century!

"Now, Mr...let me see...Blackstone," murmured the professor, extending a bony finger towards a student with an unusually blank expression, "enlighten us. The original Constitution clearly gave criminal defendants the right not to testify. But what possible purpose did this right serve?"

The class tittered as Blackstone fidgeted. "Well, sir, forcing a defendant to testify undermines the presumption of innocence. The prosecution should make its case based solely on the available evidence -- not the coerced participation of the defendant. To make the defendant play any role in his own prosecution is to act on the assumption, however slight, that he must be guilty."

"Mr. Blackstone, that just can't be right. We still have the presumption of innocence, do we not? The prosecutor must still prove his case beyond a reasonable doubt at trial, irrespective of what the defendant says. He must still secure an arrest and an indictment from a grand jury, all without the participation of the defendant. And a vigilant judge is ever-present to instruct the jury as to the prosecutor's heavy burden in these regards. When we compel defendants to testify, do we damage the presumption of evidence more than, say, the public servant paid handsomely to denounce the defendant in opening and closing arguments?"

"Well, it's unfair to cause a defendant to be judged by his ability to present himself in a convincing way."

"But, Mr. Blackstone, does not the jury weigh the credibility of every witness by such criteria? The defendant is the best of all possible witnesses. He saw it all! Why should he be exempt from such judgment?"

"Sir, witnesses have much less to lose if they're judged unfairly."

"What, apart from public humiliation, possible recriminations from the defendant or the criminal element, and exposure of all their worst secrets at the hands of opposing counsel?"

"It's not as bad as prison. Besides, criminal procedural rights should protect people from the state, not from public opinion."

"A good point, Blackstone. There's hope for you yet." The class laughed.

"Professor?" A hand from the back shot up, attached to a smartly dressed young woman with a southern accent. "As I recall, they used to have a terrible time in the old days when defendants wouldn't testify, because the jury often assumed that the defendant had something to hide."

"Judges also instructed juries not to take the silence of defendants into consideration."

"Juries did anyway, professor. Now, if the defendant doesn't testify under the new rule, juries wonder if the prosecutor has something to hide."

Blackstone nearly leapt out of his seat. "And that's my point exactly. Judges and their admonitions to juries can't protect the interests of defendants. Only rights can do that."

"Mr. Blackstone," said the professor, "aren't you a little too quick to dismiss the myriad protections afforded to the unwilling defendant-witness? The law forbids a prosecutor from impeaching a defendant through his prior criminal convictions, if the defendant is called involuntarily. Judges closely constrain the questions that prosecutors may ask of defendants compelled to testify, to prevent 'fishing expeditions.' If a defendant cannot communicate effectively, or if the defendant's testimony would create unfair prejudice, the examination can be made in the judge's chambers, with a carefully edited transcript read later to the jury. And it is well settled that a conviction cannot be obtained solely on the strength of a defendant's compelled testimony. If the prosecution fails to make a viable case prior to the compelled testimony of a defendant, the judge will dismiss the case as a matter of summary judgment before the defendant ever takes the stand. Don't these steps adequately protect defendants from the kinds of abuses that prevailed in the days of the star chambers?"

"Maybe...but it's unfair for the state to compel a man to act against his own interests. When you make a guilty man testify, you either induce him to commit perjury or you force him to speak words that defeat his position."

"True. But an innocent man has little interest in concealing his innocence. And why should the law respect the interest of a guilty man in avoiding the consequences of his guilt?"

"Rights don't have anything to do with state interests, even if one of those interests is the truth."

The old professor's face lit up. "Just so, Blackstone! You have hit upon the essence of the problem. In the old days, rights were untethered from duties. You would have been laughed out of court if you argued that any right should prostrate itself before the quest for truth. The right against self-incrimination was never intended to yield the truth. It was a firewall against the predations of the state.

"As a legal matter," continued the professor, "rights always exist in tension with truth. The right to free speech enables liars and fools to turn social discourse to wrongful ends. The second amendment allows bad men to bear arms. The prohibitions against unlawful searches and seizures protect a great many men engaged in the sale of illegal items and substances. Every legal right reflects a balance between a good and a truth. In this case, the right was out of balance.

"America abolished the right against self-incrimination because it recognized that the harm of self-incrimination was minimal, particularly when compared to the grotesque 'right' of criminals to distort the truth. A democratic society with a long tradition of freedom can count upon vigilant citizens to contain the harm of overzealous prosecutions. But who checks the encroaching power of criminals, except the state? As we are all citizens of the state, we all bear some responsibility to resist criminals. We can fulfill that responsibility by telling the truth when asked.

"When substantial evidence indicates guilt of a crime, a citizen has a duty to tell the truth if called upon to do so -- even if he is the defendant. The duty to speak the truth is a terrible and solemn burden, but worse still is the burden of living in a society where the best witnesses to awful crimes can remain silent."

Blackstone shook his head. "Back in the old days, sir, some people would have said that a society that placed duties on a par with rights would be a totalitarian society in all but name. They might have said that it is better to let a hundred guilty men go free than to besmirch the honor of one man by forcing him to testify against himself."

"I wonder if that antique notion of 'honor' would enchant many crime victims. But tell me, Blackstone: having abolished the right against self-incrimination, are we now living in a totalitarian society? Or are we living in a safer and more just society? That question would have troubled your grandparents, at the turn of the century."

Blackstone just smiled.

The author is a lawyer and TCS contributing writer.

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